Maintaining an Active Tempo in Your Divorce
Who really controls the tempo of a lawsuit? Are the parties dragging their feet? Are the lawyers creating more work than necessary? Are the court systems backlogged? If you want to control the tempo of your divorce, you must be proactive in the divorce process. And in order to be proactive, you must first understand the realities of the divorce process.
Understanding the Lengthy Process of Divorce
You’ve probably heard it said before: “divorce is a process.” Perhaps it was stated with exaggeration, or, just as a statement of fact. Regardless of the tone or the context of the statement, the reality is that divorce (and, in fact, those pesky post-divorce issues that inevitably arise) is a tedious, arduous, and typically unpleasant process. It is affected by many external factors, including the parties’ relationship with each other, the attorneys’ relationships, and the degree to which friends and family become involved. All of these factors may impact (negatively, or otherwise) the nature of the process and, therefore, it is important to have an understanding of the process before committing to a particular path. The process of a typical litigated divorce (or, modification) may be summarized, as follows:
- Identify and engage legal counsel, sign retainer agreement, and
- Wait for initial documents to be drafted
- Determine your jurisdiction, that is, the state in which the matter will be heard before a court.
- File Summons and Petition (for Dissolution of Marriage) and formally serve the documents on the opposing party, identifying the nature of your claim and the relief you are seeking.
- Wait 30 – 45 days for response
- Respond to Answer and/or Counter-Petition from opposing party.
- File Motions, for example…
- Motion for Temporary Attorneys’ Fees
- Motion for Temporary Custody
- Motion for Temporary Support and/or Maintenance
- Motion for Protection from Harassment and/or Domestic Violence
- Motion to Prevent Dissipation of Assets
- Hold Hearings for Motions
- Court-ordered Mediation (in states which require that the parties attempt to mediate all or part of their disputed issues before submitting them to the Court)
- Co-Parenting Classes are often required in cases where children are involved, to teach parents how to minimize the impact on children involved in a divorce.
- Case Management Conferences are often used as an opportunity to determine whether the parties will be able to reach a resolution, in whole or in part, prior to trial.
- Discovery is conducted to investigate those contested facts, which are often the central focus at issue in a case. For example, uncovering a full financial picture of the parties, including assets, income and debt. This can be accomplished the hard way (formal written discovery) or the easy way (both parties mutually agreeing to full disclosure), but often simply results in accusations that one party is not complying.
- File Motions to Compel relating to failure to provide discovery or for providing incomplete responses to requests.
- Hearings on pending discovery requests during which the Court most often requires the non-complying party to produce the information requested.
- Expert Review is often necessary to sort out facts that cannot be jointly agreed upon by the parties. For example, vocational experts are often employed to determine earning capacity of a party.
- Settlement discussions may be had at any point up to and including during the trial, and the parties are encouraged to attempt to resolve their issues without court intervention. The further the parties get in this process, however, the more and more difficult it becomes to reach a settlement.
- Settlement Conference/Pretrial Conference is often used (again) to encourage settlement on all or part of the issues, and set for trial those issues, which cannot be resolved between the parties. At this point, additional preparation is required to produce final exhibit lists, witness lists, updated information, etc. etc.
- Trial is typically 1 – 2 days, depending on the complexities of the case, and affords each party the opportunity to tell his/her side of the story.
- Appeals must be timely filed by the party (or parties) who disagree with the final judgment by the Court.
- Modification of prior agreements or judgments may be made if there is a substantial change in circumstances. Most often, modifications involve termination or reduction in alimony/support payments, child support, or child custody/time-sharing.
- Wait …
- … the process is starting all over again.
Do you recognize the pattern? Wait … here it is. Clearly, the process takes time. And time equals money. Money, not only in disputed alimony payments or modifications to child support, but money in legal fees and costs, which increase exponentially (x2) with each delay, each emailed “nasty-gram,” each communication with opposing counsel. Most of the steps above don’t happen all at once, and accordingly, responses to discovery will often stay in a “holding pattern,” while waiting for the court to rule on a particular motion, for example, temporary attorneys’ fees. This slows the process down considerably, while fueling the parties’ frustrations at each other, at their attorneys, and at the system, which is truthfully ill-equipped to manage these types of disputes.
The person who places herself/himself in the hands of her/his attorney foolishly believes that their interests are in alignment. They are not. The process of divorce is a business, and as such, is designed to facilitate paper flow, encourage prolonged disputes, and justify billing clients. While it may sound harsh, and certainly does not apply to all lawyers, the fact is that a professional who is paid hourly, is not motivated to resolve a dispute quickly.
So, as originally posed in the beginning of this article, who really controls the tempo of a divorce case? If you understand the process, you can control the process. It is the parties who authorize whether monies may be spent on investigations, discovery, motion filings, etc. etc. It is the parties who determine whether a settlement may be reached. If you approach your divorce strategically, you will be better equipped to manage the process.
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